Federal Criminal Lawyer Blog

Federal criminal charges are being brought against a series of Atlanta-based employees of schools. Here and here are some stories. We represent one of the people accused in these matters, which are very difficult to defend. These cases are part of an ever-expanding national trend. We have done many such cases, involving doctors, federal employees, computer programmers, salesmen and others. No matter what business our client is in, all of these cases require sensitivity, compassion, along with a willingness to try new tactics in the right situation.

Many of these cases involve clients with eerily similar backgrounds. Many of our clients are men who have been happily and successfully married for many years. These men often are exemplary fathers. I recall one poignant sentencing hearing where the 20-something daughters of our client made such fantastic speeches that the Judge commented how as a feminist she could not help but praise our client and his wife for raising such amazing daughters. After the sentencing hearing, that Judge even took off her robe, and came down to spend some time with the wife and daughters.

These cases also can be very technical, involving significant amounts of forensic computer evidence. Such cases sometimes revolve around whether a search warrant was properly presented, signed or executed. If the investigators failed to follow the law, we sometimes are able to get the evidence "suppressed", or at least put the case in a better posture for negotiating a plea agreement.

Deciding whether it is the client's best interest to negotiate a "deal" is important in every case, but never more so than in child pornography federal criminal cases. The child pornography laws have been made more and more strict over the years, often with associated "mandatory minimum" penalties. Also, the Federal Sentencing Guidelines have been ratcheted up over the years, although we sometimes have convinced judges that the Guidelines were too high, resulting in a lower sentence after we filed a Sentencing Memo. Many attorneys fail to realize that preparing for a sentencing hearing in federal court can be almost as difficult as preparing for a regular trial in the state court system.

But perhaps more than anything, the greatest difficult in such cases is that the client is accused of ordering or looking at images of children who are sometimes abused. Me and Carl have children, and are like anyone else in wanting to protect our families. But, we also are zealous in trying to understand our clients' situations, and in protecting the rights of everyone who hires us. These cases are challenging, but we do not shirk away from these difficult matters.

Here we go again, the intersection of the Eighteenth Century concept of privacy enshrined in our Fourth Amendment (no searches or seizures except when done pursuant to a warrant based on probable cause) versus the modern "CSI" world where investigators take biological shards to solve the most difficult of crimes. Today, the Supreme Court hears arguments in Marlyand v. King.

Most of the states along with the federal government have laws that provide for automatic DNA collection from people at the time of their arrest. The King case argued today asks the question whether it is unconstitutional to do that without a warrant, for the sole purpose of checking the DNA against a national DNA crime scene database.

Earlier cases all decided that that police can conduct such tests once an individual is convicted. (It's true, your Blogger lost one of these early cases, back in 2006). The King case asks whether the same is true for people arrested but not yet tried or convicted.

Here's what happened. The police arrested Mr. King in on assault charges. Using state law, they swabbed King's cheek to get a DNA sample, and then submitted the sample to the federal DNA database to see if there were any matches. The database eventually matched King's DNA to biological material from a rape six years earlier. The prosecutors used the DNA match against Mr. King, who was convicted and sentenced to life in prison for the rape.

The Maryland Court of Appeals threw out King's conviction. The state court noted that King was presumed innocent at the time of the initial arrest and that his DNA was not taken to prove that charge. The Maryland court held that the DNA collection was nothing more than a state fishing expedition for anything prosecutors could catch.

Again, this is a never-ending debate, encompassing the tension between personal privacy and the desires of Twenty-First Century crime fighters. We tend to forget that these cases almost always arise in the context of a seemingly guilty person's appeal of a horrible crime. However, if they can take DNA from a "bad" person, they can do the same thing to a "good" citizen who is falsely arrested. It does not take a lot of imagination to come up with scenarios where DNA can later be used against this "good" person, and if Mr. King loses this case, that will almost certainly happen.

More and more both here in Atlanta and around the country we see news stories about bankers getting indicted, financial professionals being accused of fraud, and other white collar criminal actions brought against people working in the financial sector. Also, in a recent post, I wrote about a federal criminal case where the indictment did not even charge a federal crime, yet none of the lawyers nor judges noticed the problems until the judges on the Court of Appeals brought up the issue after the case was on appeal. The combination of these two stories reminded me of how important it is for lawyers to carefully scrutinize the charging documents when the attorney is defending a person in the financial industry against criminal charges.

This also reminded me about a case we had a couple of years ago where we represented a young banker here in Georgia. Back when the real estate market was flying high, he was a superstar, bringing in millions of dollars in loans to developers who were fueling the Atlanta housing boom. When the market began getting soft, he was dismayed by how his bosses were treating him, so he took his book of business to another local bank. The bosses at the first bank did an "investigation", and turned over to the authorities the dirt they had supposedly uncovered on this young banker. The local District Attorney thought he'd be a star also, and could get his name in the papers by indicting a banker just as the housing market was collapsing. They accused our client of claiming in memos to the loan committee that his developer/clients were putting 10% into the deals, when in fact they were not. The DA then got an indictment that charged our client with making "false entries" in the "books reports or statements" of a financial institution.

We were hired, and, like attorneys should do in every case, we went over everything with a fine-toothed comb. We discovered that the law they charged in the indictment had not been used for over 50 years! Next, we compared this old law, and the few cases interpreting it, to the actual language in the indictment. We came to the conclusion that the memos to the loan committee were not "false entries", and even if they were, a memo to the loan committee is not a "book, report or statement" of a financial institution.

We took the unusual step of filing what is called a "demurrer" in Georgia. By this step, we basically argued that even if we admitted to the facts in the indictment, those facts did not constitute a crime. The judge was convinced we were right. He had us write up an order, which he then signed, and the judge then dismissed all the charges. This young banker got his life and career back, and we occasionally hear of how well he is doing.

None of us are perfect. But when as lawyers we are asked to defend another human being, that enormous responsibility requires that we look at every possibility when defending our clients. I know that most lawyers representing the growing number of indicted bankers face many of the same challenges.

In an amazing opinion issued in Atlanta by the Eleventh Circuit, the court reversed a series of federal criminal convictions because the indictment did not even charge a crime. And, they did so even though none of the lawyers for either side bothered to address whether the indictment properly charged a federal criminal offense! The whole issue came down to whether the Defendant's actions were "contrary to law", and because they were not, the court of appeals reversed all their convictions.

The Defendants and their company imported dairy products into the U.S. from Central America. Apparently, several of their imported products were contaminated with E. Coli and salmonella.

Some of the post-9/11 laws beefed up the statutes that criminalize the unlawful importing of goods into the United States. One of those laws is 18 U.S.C. § 545. The unlawful importation charges in the indictment here were based on violations of a Customs regulation, alleging the failure to deliver, export, and destroy with FDA supervision certain imported goods found to be adulterated. See 19 C.F.R. § 141.113(c). Failure to comply with this regulation typically gives rise to a civil remedy of liquidated damages in the amount of three times the value of the goods.

The criminal statute, 18 U.S.C. §545, says it is a crime to import items if doing so is "contrary to law". To summarize what is a quite lengthy decision, the Court of Appeals decided that the regulation is not the kind of "law" referred to in this particular criminal statute.

To me there are two notable items from this decision. First, the Court of Appeals itself brought up the whole issue of whether the indictment even charges a crime. The judges told the lawyers for both sides to file more briefs on the questions of whether 1) the appeals court can even address the issue if no one raised it (they decided they could), and 2) whether the charges, as set out in the indictment, even alleged a crime. I've been doing this a very long time, but cannot ever remember a similar case.

The second thing that popped out to me when reading the opinion is that the Court of Appeals totally rejected the prosecutor's arguments that any problems with the indictment could be fixed by "inferring" the missing pieces. My law partner, Carl, and I have been fighting this fight for over a decade now. Prosecutors get invalid indictments that do not allege everything needed to prove a crime, but judges have been increasingly letting them get away with it by referring to some faulty and flimsy earlier rulings where the missing elements of the crime are put back in by the process of making an "inference.

It is cases like this that re-energize me. I am glad to see judges who take their jobs seriously and who do not think they are supposed to merely rubber stamp every conviction that comes along. While such cases get my juices flowing, the decision also reminds me that all lawyers need to take a good long look at the charges in an indictment, and not just assume the charging document actually alleges a crime.

My law partner, Carl Lietz, has previously had good results when we represented medical doctors accused of over-prescribing pain medication. He has written earlier posts on this subject. We are seeing more and more of these cases, as shown by recent press releases and news reports. Today, the United States Court of Appeals for the Eleventh Circuit, just a few blocks away here in Atlanta, affirmed the conviction of a doctor, a pharmacist, and a physician's assistant for conspiracy and dozens of counts of over-prescribing pain medications. The case is United States v. Joseph.

The case was prosecuted in the Middle District of Georgia where Dr. Green ran a clinic. His Physician's Assistant was Ms. Mack, and most of the prescriptions were filled by a local pharmacist, Mr. Joseph. The Court of Appeals' opinion recounts the usual evidence we see in such cases involving "pill mills", hundreds of patients paying in cash or credit cards, no insurance, patients traveling long distances just to go this particular clinic, and limited or non-existent medical exams prior to writing or re-filling prescriptions for addictive pain medications.

There are several notable features of this case. One is that both sides called expert witnesses on the "standard of care" to be used by doctors and pharmacists. This is a crucial aspect when defending such cases. Many lawyers fail to recognize they need to prepare for a government "expert" who routinely tells juries the same thing: "I would never do what this doctor did." However, these government experts often fail to recognize the true need many patients have for pain medicines. My partner Carl has previously used a well-recognized defense expert witness who was able to at least counter what the government doctor was prepared to say.

Another important aspect of the case is that most of the defense arguments were rejected by the Court of Appeals under the "plain error" standard, because the trial lawyers failed to properly object to a mistake by the trial judge. Even very good lawyers often fail to preserve objections, which makes it very hard to win a case on appeal. Our firm does lots of appeals, and while we are far from perfect, we believe our appellate cases helps us do a better job in trial when trying to preserve an issue for appeal.

Finally, the case is instructive in that the doctor was given a sentence of 30 years in prison, because patients died or suffered serious bodily injury stemming from their use of the excessive pain medications. Such a sentence demonstrates the serious nature of these cases, and why medical practitioners need to find lawyers who are skilled in federal court when defending such matters.

Recent publicity about airline passengers accused of federal crimes while on airplanes (such as the executive accused of hitting a crying child while on a Delta flight arriving here in Atlanta) got me to thinking about how flying has changed over the years. It's much less fun, that's for sure. The recent publicity reminded me also that over the years I have represented many people accused of crimes while on airplanes. The federal prosecutors are bringing more and more criminal cases based on actions of passengers in airplanes. Such cases are challenging, even though on occasion we have been able to get good results for our clients.

I recall one case where our client was accused of basically "touching himself" while sitting next to a couple of teenage girls. We had a long trial, a challenging sentencing hearing, but all along I had hope that we might prevail. We lost, but not until we made the other side work very hard. Here is the final ruling by the Court of Appeals. I still think we were right.

Some of the recent cases also reminded me of a medical doctor I represented who got caught up in the post 9-11 laws that criminalize lots of innocent conduct. One of those laws (18 United States Code, section 1038) makes it a crime to make a false report of something, which if it was true, would be a terrorist act. Through a series of mishaps, the doctor was pulled off a plane, but they would not remove his luggage, and planned on sending the flight along without him but leaving his bags on board. He complained, explaining that was stupid, in that for all they knew, his bags could contain explosives. That was not a smart thing to say, but it also was not a crime, in my estimation. Over the course of several years, I filed hundreds of pages of legal motions challenging the statute, and argued that the doctor had a First Amendment right to make a truthful statement: it is stupid to allow a passenger's bags to remain on a flight when the passenger himself is no longer one of the passengers. After lots of work, we eventually convinced the prosecutors to drop all charges. The incident still pops up from time to time when the doctor's medical license is up for renewal, but every time it has we convinced the regulatory bodies that he did nothing wrong.

The federal authorities like to make criminal cases when activities take place on airplanes. I probably will see more of these in the years ahead.

Both in federal criminal cases here in Atlanta and around the country, as well as in the state court proceedings we handle throughout Georgia, we occasionally deal with issues relating to "Double Jeopardy," the portion of the Fifth Amendment that says prosecutors only get one bite at the apple. Yesterday, by a 8-1 vote, the United States Supreme Court continued to protect all of us against multiple prosecutions by holding there cannot be a second trial even when the judge made a mistake by erroneously granting an acquittal to the Defendant in the first trial. The case is Evans v. Michigan.

Mr. Evans was accused of setting a building on fire. One Michigan law makes it a crime to burn a dwelling, while a second law makes it a crime to burn "other real property." At the close of the evidence, the Defendant's lawyer pointed to standard jury instructions which require proof that the property was a "non-dwelling" before a person could be convicted of the crime of burning "other real property." The trial judge, noting that the property owner said the building WAS a dwelling, granted an acquittal for the Defendant because the prosecution had failed to prove the property was NOT a dwelling. It turns out the trial judge was completely wrong, in that burning "other real property" is a lesser-included offense of the greater crime of burning a dwelling. The prosecution appealed, and Michigan's appellate courts decided that a second trial was OK, even despite the protections from the Double Jeopardy Clause.

The U.S. Supreme Court reversed, holding that retrial following a court-decreed acquittal is barred, even if the acquittal was based upon an egregiously erroneous foundation. An "acquittal" includes any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. This is different from procedural rulings, which lead to dismissals or mistrials for reasons unrelated to factual guilt or innocence. An acquittal is a substantive ruling that concludes proceedings absolutely, and thus raise significant Double Jeopardy concerns. Here, the trial court clearly evaluated the prosecution's evidence and determined that it was legally insufficient to sustain a conviction. While the acquittal was the product of an erroneous interpretation of governing legal principles, that error affects only the accuracy of the determination to acquit, not its essential character.

Along the way, the Supreme Court addressed the prosecution's argument that Mr. Evans got a "windfall", and he should not get the benefit of a real bonehead ruling by the trial judge. The U.S. Supreme Court was unimpressed, noting that States and the federal government have the power to prevent such situations by disallowing the practice of midtrial acquittals, encouraging courts to defer consideration of a motion to acquit until after the jury renders a verdict, or providing for mandatory continuances or expedited interlocutory appeals. The bottom line: the Double Jeopardy Clause remains intact as one of the bulwarks protecting individuals from multiple prosecutions, even when the first case was erroneously decided against the prosecution.

Because we do lots of federal criminal cases, many of them here in Atlanta and throughout Georgia, Alabama and Florida, we therefore pay close attention to such matters when they work their way to the United States Supreme Court. One such case is Bailey v. United States, a situation we discussed in an earlier on this blog. Yesterday, in a 6-3 decision written by Justice Kennedy, the Supreme Court agreed with the defense position, holding that when the police are at a location to execute a search warrant, the police do not have the right to stop and then search a person who already left the premises just before they began searching.

The issue in Bailey stems from a prior ruling issued thirty-one years ago, Michigan v. Summers. In that case, the Supreme Court decided that officers executing a search warrant for contraband may detain the occupants of the premises while the search is conducted. However, over the past three decades, there has been a big conflict among federal courts of appeals and state courts of last resort about whether the rule of Summers permits detaining individual who has left the immediate vicinity of the premises before the warrant is executed.

So, the Court yesterday cleared up the conflict in the case of Chunon Bailey. The police had a search warrant for an apartment. While staking it out before executing the warrant, and officers noticed two men leaving the apartment. They followed Mr. Bailey from the apartment to be searched and detained him 0.7 miles away. During the detention, the officers discovered a key to the apartment on Bailey’s person, and he made incriminating statements that linked him to the apartment. The cops then haul everybody back to the apartment, where the search was in progress. In the course of the search, law enforcement located guns and drugs, and Mr. Bailey was later charged with various federal offenses. The federal district court denied Bailey’s motion to suppress the fruits of his detention, and the key was the main evidence used at trial to support the prosecution's theory that Bailey owned the guns and drugs in the apartment. It must have been a close case, for the docket shows the jury deliberated over the course of three days. However, Bailey was convicted, and based on his extensive prior record, got a 30-year sentence. On appeal he again argued that the police violated the Fourth Amendment when they stopped him many blocks away from the apartment. The Court of Appeals sided with the Government.

In reversing the court of appeals, the Supreme Court held that the rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was stopped almost a mile away. The Summers rule permits officers to detain occupants even when there is no particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers. Detention is permitted because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial. Here, however, Bailey left the apartment before the search began and was detained nearly a mile away. None of the three law enforcement interests identified in Summers applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. Limiting the rule in Summers to searches of current occupants is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of thesearch and not at a later time in a more remote place.

This is a good decision, one which protects individual liberties while also allowing law enforcement to safely execute search warrants. We hope the Supreme Court continues to recognize that we all win in such cases.

The Supreme Court today issued one of the two dog cases on its docket, Florida v. Harris. Recall that we blogged on this case when it was accepted for review. In today's unanimous ruling, the Supreme Court held that just because there are no performance records for how a dog does in the field, this by itself does not mean that a dog's positive alert cannot form the basis for a probable cause search.

The pooch in this case is "Aldo." His handler obviously had it out for Mr. Harris. The officer stopped Harris two times, and had Aldo run around the truck, sniffing for the odors of dope, etc. The first time, Aldo "alerted", but the officer did not find any of the substances for which the dog was trained to alert. However, they did find chemicals used to make methamphetamine, so they arrested Harris. The same officer again stopped Harris while the latter was out on bail. Once again, the loyal pooch ran around the vehicle, again alerted, but this time no illegal substances or precursors were discovered.

Mr. Harris moved to suppress the results of the first search, arguing that the dog alert was insufficient so as to allow a warrantless search of the truck's interior. The prosecution presented evidence about Aldo's extensive training in sniffing out illegal substances. Defense counsel did not challenge this evidence, but instead focused on the lack of any field performance records, along with the fact that Aldo had obviously given two false positives when alerting at the exterior of Mr. Harris's truck. The Florida Supreme Court agreed with the defense, noting that the lack of performance records for the dog's earlier work demonstrated that an alert from this animal was simply insufficient evidence to form the basis for probable cause.

Justice Kagan wrote for the unanimous Supreme Court. She noted that the Florida Supreme Court created a rule with specific requirements for establishing probable cause in dog alert cases, and that such specificity is the antithesis of the flexible totality-of-the-circumstances approach in such matters. Courts should not require that the prosecution introduce comprehensive documentation of the dog’s prior hits and misses in the field. The Court noted that looking at field-performance records as the evidentiary gold standard is erroneous. Such records may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. While field records may sometimes be relevant, the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.

This case was not a huge surprise. Courts have for years been calling drug dogs "four-legged probable cause." Also, for many years the Supreme Court has rejected any specific rules in the probable cause analysis other than the "totality of the circumstances" test, which, obviously, puts a whole lot of power in the hands of the first judge who looks at a case.